DASS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2025] ARTA 1898

DASS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 1898 (10 September 2025)
Applicant:Rajnesh Rohit DASS
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2024/2284

Tribunal:Senior Member Hon J Rau SC
Place:Adelaide
Date:10 September 2025
Decision:The Tribunal affirms the decision under review.

....................[sgnd]..............................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class BB Subclass 155 Five Year Resident Return visa under section 501(3A)- where Applicant does not pass the character test– Applicant has substantial criminal record – family violence – break and enter – common assault – driving offences – two previous visa cancellations - whether the visa cancelation under section 501CA(4) should be revoked – consideration of Ministerial Direction No. 110 - decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500.
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024).
REASONS FOR DECISION
Senior Member Hon J Rau SC
10 September 2025
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 8 April 2024,[1] not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa (“the Visa”). His visa was cancelled on 4 April 2023 under section 501(3A) on the basis that he did not pass the character test.[2]
[1] Hearing Book (‘HB’) 15-30.
[2] HB 15.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction for various offences as set out below and his sentence to 16 month’s imprisonment on 17 February 2023.[3]
[3] HB 19, 39.
The Applicant concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 18 and 19 of August 2025. The Applicant was represented by Ms Marial Lewis of Crossover Law Group and the Respondent was represented by Mr Matthew Wong of HWL Ebsworth Lawyers.
The Applicant gave evidence by video from Villawood Detention Centre. He tended to be argumentative, or given to rambling, often irrelevant responses, to direct questions. He returned to repetitive leitmotifs, whether to do so was responsive to a question that he was being asked, or not. For example, he kept repeating the phrase that he now had “the tools” to deal with the challenges of life and the temptations of drug abuse. He repeatedly said that he wanted to be there for his daughters. He said that he was “very serious” about his recovery “this time”. He responded to many questions, particularly those about his past family violence conduct, with “I can’t remember”, or “it was so long ago”, or “no comment”.
The Applicant was cautioned about his right to refuse to answer a question on the basis that it may tend to incriminate him in an uncharged criminal offence. His counsel was invited to also intervene on his behalf, should such an occasion arise. No such objection was raised.
The Applicant sought to present a high-level narrative, broadly along the following lines.
-He started using methamphetamines in 2015, and he committed offences to feed his drug addiction.
-Later, he managed to get his life back in order, only to relapse again in the grief occasioned by his father’s death in 2021.
-Since his most recent incarceration and detention, he has done courses that have enabled him to “take responsibility”.
-He now has “coping mechanisms”, and he will not reoffend.
This narrative, as set out in some detail below, is either materially incomplete, or does not accord with the facts. His offending began well before 2015, in about 2008 in fact, and but for a period between about 2011- 2014, it has continued ever since.[4] He has engaged in substance abuse of one kind or another for many years. He is presently receiving treatment for an opioid addiction, acquired since his most recent incarceration in August 2022,[5] and his subsequent period in immigration detention.
[4] HB 33-39.
[5] HB 182.
I am satisfied that the Applicant also gave false testimony to the Tribunal concerning several matters as set out below. For example, he was adamant that he had never been separated from his wife. Independent police records before the Tribunal, show that police were told on several occasions, presumably at least by his wife, that they were separated for some years. He said of these records that the “police can make up anything”. The fact of their separation was confirmed by his wife when she gave evidence. She said that they eventually reconciled, although she did not say when. In practical terms they have continued to be separated for some years now in any event, due to his imprisonment and his detention.
The Applicant was an unimpressive witness. I formed the view that it was unsafe to place any weight on the Applicant’s uncorroborated claims. This is relevant not only to an assessment of the background facts in this case, but also very importantly, to the weight that the Tribunal should give to the Applicant’s assurances about his future conduct. Where the Tribunal has only the credit of the Applicant, or his say so to rely upon, it carries little weight.
The Applicant called Mr Watson-Monroe a psychologist, as an expert witness. Mr Watson-Monro has produced two reports concerning the Applicant dated 25 May 2025,[6] and 7 August 2025.[7] Mr Watson-Monro gave evidence by phone. His evidence was helpful and considered. His reports assessed the risk of the Applicant reoffending as moderate to low. This assessment was however, based on two assumptions. The first was that the Applicant had been truthful in giving his history. The second was that the Applicant was committed to, and would actively engage with, ongoing community-based treatment, if released from detention. In my view, both assumptions are unsafe.
[6] HB 193-205.
[7] HB 1482-1500.
The Applicant did not give Mr Watson-Monro an accurate history of his drug use for example, particularly his drug use since being imprisoned in 2022. The evidence suggests that the Applicant was using illicitly obtained buprenorphine (Bupe), from the time that he entered the NSW prison system. When he came into the immigration detention system, this illicit drug use continued to a point where he concedes that he became addicted to Bupe. He has also continued to use illicit Methamphetamines in detention, most recently in April this year. Since April this year, he has been on an opioid dependency programme and receiving monthly Bupe injections. It seems that the Applicant also did not give Mr Watson-Monro a full history of the events surrounding his 2 previous visa cancellations in 2016 and 2019, either.
The second assumption about the Applicant’s commitment to ongoing treatment necessarily involves an assessment of not only the Applicant’s expressed intentions, but also his general credit and capacity to make good on his promises. As I have already noted, the Applicant’s uncorroborated claims carry little weight. His expressions of future intention, even if presently genuine, based on his history and general credit, lack any compelling grounds to be treated with confidence.
Mr Watson-Monro said that the Applicant was “a work in progress”. He agreed that if the Applicant did not engage fully and consistently with community-based treatment, the chance of him relapsing into substance abuse would increase. If this happened, his chances of reoffending would also increase. His evidence confirmed a direct link between substance abuse and offending.
The Applicant called his wife (‘Ms.SD’). She gave evidence by phone. She was a very impressive witness. She gave direct, concise and relevant answers to all questions. To the extent that there is any conflict between her evidence and that of the Applicant, I have no hesitation in preferring hers. This is relevant for example, in relation to the Applicant’s repeated denial that he was ever separated from her. It is also relevant to the various attempts he made in his evidence to minimise or avoid, a frank disclosure of the nature and extent of his acts of family violence.
Ms. SD told the Tribunal that she could not now recall all the details, of every past instance of family violence, perpetrated by the Applicant. This is understandable both because the recorded history of family violence goes back at least to 2008 and because there have been so many individual incidents, in the many years since then.
Ms. SD told the Tribunal however, that she only ever called the police when she had a good reason to do so. It was her practice on such occasions to tell the police all the details of the incident when they arrived. Some of these reports to police resulted in successful prosecutions, some did not. Some resulted in the issue of AVO’s. Some went nowhere. She was adamant that on each such occasion, she told the complete truth to the police.
Accordingly, I have no reason to doubt that the numerous police records before the Tribunal relating to family violence, accurately record the circumstances of each incident, as reported at the time to police, by Ms. SD. I am satisfied that these reports and fact sheets are generally reliable. They should certainly be preferred to any alternative account given by the Applicant, to the extent that such an account has been advanced at all.
Ms SD said that she was under financial pressure and “intense stress”. She gave the impression that she primarily wants the practical and financial support of her husband to help with raising and educating their 2 daughters. She wants to “forget the past” and is prepared to accept that the Applicant has changed, and in her words to “look forward”. She understandably could not vouch for the effectiveness of any courses that he has done. She confirmed a clear connection between the Applicant’s drug use and his offending.
At the Tribunal’s request, the parties jointly prepared a calendar setting out the Applicant’s complex history of AVO’s, conditional releases, imprisonment and time spent in immigration detention. This document is a diagrammatic representation of the long and complex narrative set out below. It is intended to assist in understanding that primary evidence, in a chronological context. This document is annexed to this decision and marked “Annexure A”.
Background Facts
The Applicant was born in Fiji on 22 May 1977. He is now 48 years old. He is a Fijian national.[8]
[8] HB 78, 103.
On 28 June 2002, when the Applicant was aged 25, he came to Australia.[9]
[9] HB 148.
Between 2002 and 2015, the Applicant worked as a shop assistant.[10]
[10] HB 95.
On 18 August 2003, the Applicant departed Australia for Fiji.[11]
[11] HB 148.
On 12 September 2003, the Applicant returned to Australia.[12]
[12] HB 148.
The Applicant first came to the attention of police on 15 October 2003, when he was found in possession of Cannabis.[13]
[13] HB 350.
On 5 March 2004, the Applicant travelled to Fiji.[14]
[14] HB 148.
On 21 March 2004, the Applicant returned to Australia. [15]
[15] HB 148.
On 26 May 2005, the Applicant travelled to Fiji.[16]
[16] HB 148.
On 19 June 2005, the Applicant returned to Australia.[17]
[17] HB 148.
On 30 June 2006, the Applicant travelled to Fiji.[18] He married his wife, Ms SD in Fiji.
[18] HB 147.
On 31 July 2006, the Applicant returned to Australia.[19]
[19] HB 147.
In April 2007, the Applicant’s wife, Ms SD came to Australia from Fiji.
On 12 August 2007, the Applicant’s daughter, Child A was born. She has just turned 18. She is an Australian citizen.[20]
[20] HB 107.
On 29 April 2008, the Applicant assaulted his wife.[21] The police fact sheet states;
[21] HB 407, 469.
“The Accused Rajnesh DASS and the victim [Ms. SD] have been in a domestic relationship for nine years. Two of those nine years they have been married. As a result of this marriage the couple have a nine month old baby named [Child A].
During the past nine months the accused and victim have had relationship issues which resulted in several occasions of the victim being mentally and physically assaulted. These incidents were never reported to Police. The couple currently live at [REDACTED], New South Wales which is a two storey brick unit.
About 5am on Tuesday the 29th of April, 2008 the victim awoke from her sleep. At this time the victim walked down stairs and prepared a cooked lunch for the accused to take to work. As a result the victim opened a nearby window to allow fresh air into the unit. At this time the accused awoke and approached the victim.
At this time the accused stated: "This not good, this will upset the baby, it's to cold. Slut you bitch, you mother fucker, fuck off, you go fuck your father". As a result of this the accused entered the kitchen area and began to throw the food items the victim had prepared around the kitchen area causing food to fall to the ground and surrounding sink area.
Due to this incident the accused and victim became involved in an verbal argument over the way the accused had thrown the items around the kitchen. As a result the victim attended upstairs to their nine month old baby which was crying due to the noise both the victim and accused were making. Due to this the accused approached the victim outside their upstairs bedroom. During this time the accused stated: "You bitch, fuck you".
At this point the accused raised his right hand and with an open hand slapped the victim to her left cheek three consecutive times. During this time the accused spat towards the victim narrowly missing the victims facial area. As a result the victim suffered immediate pain to her left cheek. This then caused the victim to cry as a result.
The accused then walked down the stairs and on the way to the exit punched a nearby laundry door causing damage to the wooden door.
The accused then exited the unit and attended to his parents address nearby at unit 2 of the same unit complex. During this time the accused soon after left for work. As a result of the incident the victim had a heated conversation with her mother in-law soon after the altercation.
As a result the victim contacted Police at about 1 lam on the same day. A short time later Police attended the unit and spoke with the victim. During this time the victim provided Police with a written statement in regards to the incident.
During this time the victim explained to Police that the accused was currently at work and only due back at about 7pm. During this time the victim explained to Police that she had recently received her permanent visa from immigration and that she was sick of her husband getting away with this stuff.
Police did not sight any injuries on the victim in relation to the assault.
About 7.35pm on the 29th of April, 2008 Police attended unit [REDACTED]. During this time Police arrested the accused. At this time the accused was cautioned and all the safe guards in relation to the Law Enforcement Powers and Responsibilities Act2002 were adhered to. At this time the accused was frisk searched and handcuffs placed to the rear of accused. At this time the accused was conveyed back to [REDACTED] Police Station in an marked sedan.
While in Police custody the accused was introduced to the Custody Sergeant. During this time Part 9 of LEPRA was explained to the accused. The accused was afforded the opportunity to participate in an Electronic Recorded Interview between Suspects and Police to which the accused disagreed. However whilst in police custody the accused made certain admissions to police in relation to the offence. He stated,' Yes I may have slightly slapped her on the cheek a couple of times but not hard I did not assault her badly in any way." Whilst the accused stated this he indicated to police with a slight slapping motion on his right cheek with his right hand.
The accused is now charged with the matter now before the court.”[22]
[22] HB 399, 410-412.
When asked about this the Applicant said that he had slapped her.[23] He entered a plea of guilty.[24] He accepted that this was not the first time that he had assaulted his wife.
[23] HB1120.
[24] HB 406.
On 9 May 2008, following the family violence conduct detailed above, the Applicant appeared in the Burwood Local Court charged with common assault. He was not convicted, but he was directed to enter into a 12-month bond good behaviour bond.[25]
[25] HB 406, 408.
A 12-month AVO was issued for the protection of his family (the first AVO).[26] The grounds for the application were as set out above.[27]
[26] HB 396, 403-5.
[27] HB 410-412
On 25 August 2009, the Applicant was granted the visa.[28] On that day he travelled to Fiji.[29]
[28] HB 70.
[29] HB 147.
On 18 September 2009, the Applicant returned to Australia from Fiji and completed an incoming passenger card.[30] In that he stated that he had no criminal convictions.[31]
[30] HB 147.
[31] HB 146, 362-365.
Whether this was technically true or not, in the context of the Applicant’s overall conduct, I give it no weight.
A NSW police record dated 8 March 2010 states;
“About 9.00pm Saturday 6 February 2010, the victim and POI were having an argument in their bedroom over an unknown matter. At some time during this argument, the POI has allegedly punched the victim in the back. The victim has then contacted police on two occasions. On the first she informed police she had been punched. On the second, she was abusive to triple "0" operators and stated she did not want police to attend.
Police attended a short time later and spoke with the victim and POI. Police also sighted the CAR and observed her to be in good health. The victim refused to provide police with a statement in relation to the matter and stated she did not wish to attend court, nor see her husband charged. The victim refused to expand on the details given in relation to the alleged assault.
Police informed the victim that if she was not willing to co-operate and provide a statement then police were unable to assist her. She agreed to this. Police sighted the victim's back and did not observe and injuries or redness - the victim also stated she had no pain.”[32]
[32] HB 420.
The Applicant was asked about this incident. He said that he “did not remember….no comment”.
On 26 March 2010, as a result of the 8 March incident, a 12-month AVO was issued for the protection of the Applicant’s wife (the second AVO).[33]
[33] HB 415-416, 423-425.
On 25 May 2011, the Applicant failed to stop his vehicle for a breath test. He was detected driving with a PCA of 0.092.[34] He was disqualified from driving for 9 months.[35]
[34] HB 366-369, 372-374, 469
[35] HB 645
On 8 September 2011, the Applicant was convicted in the Burwood Local Court of consuming alcohol when driving, disobeying a signal to stop for a breath test, driving with a middle range PCA and not stopping at a stop line at a red light. He was fined, placed on a 12-month bond and disqualified from driving for 10 months (the first disqualification), until 24 February 2012.[36]
[36] HB 470.
The Applicant wrote to the presiding Magistrate promising that “I will never DRINK & DRIVE AGAIN”.[37] This turned out to be an empty promise.
[37] HB 375.

In July 2012, the Applicant’s second daughter, Child B was born. She is 13 years old. She is an Australian citizen.[38]
[38] HB 105.
On 18 September 2012, the Applicant travelled to Fiji.[39]
[39] HB 147.
On 6 October 2012, the Applicant returned to Australia from Fiji and completed an incoming passenger card.[40] In that he stated that he had no criminal convictions.[41]
[40] HB 147.
[41] HB 145.
On 29 June 2014 the Applicant was apprehended drinking while driving, notwithstanding his earlier promise to the contrary. He was disqualified from driving for 10 months from 28 August 2014 to 27 June 2015.[42]
[42] HB 646.
On 28 August 2014, the Applicant was convicted in the Paramatta Local Court of consuming alcohol when driving and a PCA offence. He was fined $1500 and disqualified from driving for 10 months until 27 June 2015 (the second disqualification).[43]
[43] HB 470.
The Applicant reported starting to use methamphetamines in 2015. This developed into a daily habit costing $150 per day. He used for 6 years.[44] He lost his job as a result.
[44] HB 221.
It seems that the Applicant has spent little, if any time in the paid workforce since 2015.[45]
[45] HB 196-7.
On 26 February 2015 the Applicant was apprehended driving disqualified and with a PCA.[46]
[46] HB 646.
On 23 April 2015, the Applicant was caught again driving when disqualified.[47]
[47] HB 647.
On 6 July 2015, the Applicant was convicted in the Paramatta Local Court of driving when disqualified (second offence). He was fined $1300 and disqualified from driving for 6 months (the third disqualification). He was ordered to do 200 hours of community service.[48]
[48] HB 471.
On 28 August 2015, the Applicant was convicted in the Paramatta Local Court of driving disqualified and a PCA offence. He was fined $1300 and placed on an alcohol interlock programme for 12 months.[49]
[49] HB 471.
On 12 November 2015, the Applicant committed a serious assault on his wife.[50]
[50] HB 45.
On 12 November 2015, the Applicant failed to appear in accordance with a bail agreement.[51] He was taken into custody and refused police bail.[52]
[51] HB 472.
[52] HB 593-4.
On the same day a provisional AVO was issued for the protection of the Applicant’s wife.[53] The basis for this application was stated as follows;
“Grounds of Application:
The applicant relies on the following grounds:
The defendant in the matter is Rajnesh Rohit DASS and the Person In Need of Protection (PINOP) is [REDACTED]. The two have been married for the past nine years and have two children, ages eight and three. The family reside together AT [REDACTED] with the defendant’s mother, father, two brothers and sister in law.
About 6:00am on Thursday the 12th of November 2015, the defendant was sleeping in an upstairs bedroom alone. The PINOP, who sleeps in the bedroom with the two children, entered the defendant’ room to wake him for work. She then returned to her room and lay down on the queen size bed with the two children sleeping by her side.
The defendant then entered the PINOP's bedroom. The two had argued the night prior over the PINOP's missing smart phone. The same argument commenced again when the defendant entered the bedroom. The argument escalated with the defendant allegedly calling the PINOP a "bitch" and "mother fucker".
The PINOP was lying on the bed with the right side of her face on the pillow. She watched as the defendant approached the bed with his fists clenched. Its alleged the defendant then punched the PINOP 4-5 times with a closed fist on the back of her arms, alternating between his left and right fist. The defendant then punched the PINOP two times with a closed fist, striking her to the left side of her head. The PINOP started crying and woke the two children next to her who started screaming. With the children watching, the defendant then punched the PINOP in the back 2-3 times, alternating between fists again before leaving the room.
The remaining members of the household woke to the sounds of the children screaming and crying. The defendant' mother, [REDACTED] entered the bedroom where the eight year old child said, "Papa was hitting Mummy".
Police attended where the defendant was arrested and cautioned, to which he said "Yeah I did it, but she blames me for everything, yeah it's true". He was conveyed to [REDACTED] Police Station and introduced to the Custody Manager where he was read and explained his rights as per Part 9 of the Law Enforcement (Powers & Responsibilities) Act 2002.”[54]
[53] HB 563.
[54] HB 565.
The Applicant denied having said the reported words. He then told the Tribunal that he couldn’t remember because, it was “so long ago”.
On 4 December 2015, a final 12-month AVO (the third AVO) was issued for the protection of the Applicant’s wife and daughters.[55]
[55] HB 556-559.
When asked about this the Applicant said that he couldn’t remember and that it was too long ago and that he had no comment.
On 25 January 2016, the Applicant was apprehended shoplifting from a Target store.[56]
[56] HB 735.
On 31 January 2016, the Applicant was apprehended for shoplifting.[57] He told the Tribunal that he recalled this incident.
[57] HB 737.
On 3 February 2016, the Applicant was convicted in the Fairfield Local Court of common assault (DV) and contravening an AVO. A warrant was issued. He was sentenced to 8 months imprisonment (the first sentence of imprisonment) commencing on 3 February 2016 and ending on 2 October 2016. This was suspended upon entering into a bond. [58]
[58] HB 472-4.
The Magistrate in that hearing said:
“HIS HONOUR: I have three separate files in front of me. Mr Aquire, I have had these papers for some time and I have given them some consideration 30 and what I had in mind - I note that when I read in the material that the authorities from the Merit Program were asking for the proceedings to be adjourned to 16 March.
I note that the assault at 6am on 12 November was a very serious assault and that the defendant must have been charged and bailed on 12 November and there was an AVO not to go the house and it is 4.50, about ten hours later, there was another contravention and associated with that was a possession of prohibited drugs. On 22 December there are other drugs charges but I could deal with the assaults, the fail to appear, the contravention without a fulltime custodial sentence being imposed now, and adjourn the drugs matters to 16 March, that is what occurred to me and I am happy to listen to anything you might have to say.
AQUIRE: Your Honour, I certainly have instructions in relation to his guilt. He doesn't wish to agitate any convictions or the like so that wouldn't cause any problem for Mr Dass to be sentenced. The only concern I had is that there must be an AVO floating around, that AVO that was contravened, and that AVO I suspect is before Burwood Local Court on a date unknown but I am happy for your Honour to deal with those matters today and have only the drug matters go up to Parramatta for Merit.
…
HIS HONOUR: ON EACH OF THE ASSAULT MATTERS AND THE FAIL TO APPEAR I RECORD CONVICTIONS. ON EACH ONE OF THOSE MATTERS I SENTENCE YOU TO GAOL FOR EIGHT MONTHS. ON EACH ONE OF THOSE MATTERS I SUSPEND THE SENTENCE PURSUANT TO S 12.
It is not a good behaviour bond, it is a suspended sentence, if you breach it, if you last seven months and three weeks and six days and you commit a driving offence you will be brought back before the Court and you will get eight months gaol. It is hanging over your head. There is only one person that can put you in gaol on the planet and that is yourself so all of those matters are finalised now.
You have to go to the Probation and Parole within 24 hours at Parramatta. If you do not abide by the directions of the Probation and Parole Service they will write a letter in too and then that can also result in the gaol sentence of eight months being served inside.”[59]
[59] HB 45-46.
Between 2 and 3 March 2016, the Applicant committed a break and enter offence. The police fact sheet states:
“The accused in the matter is Rajnesh Rohit DASS, born on the [REDACTED].
The address of [REDACTED] is a large residential unit complex located on [REDACTED]. The premises has underground garages for each corresponding unit which is accessed via a main driveway at the southern end of the complex. Each garage space has its own door and is secured by a locking handle on the outside, as well as three lockable pegs attached the bottom left, middle, and right.
About 9:15pm on Wednesday the 2nd of March 2016, the victim and lawful occupier of Unit 9 drove his motor vehicle into his respective garage at said premises. This particular garage is situated in the far right comer facing east, and unlike other garages is not visible from the main driveway. At this time, the victim's dark grey Atlantis Adventure’ bicycle with black seat, black handle bars and black pedals was leaning on the wall left of his motor vehicle. The victim pulled down the roller door, locking the left peg with his key.
About 9:30am on Thursday the 3rd of March 2016. the victim returned to his garage to find the roller door in the open position with damage to the left peg. The victim entered the garage to find his bicycle no longer in the garage.
On this same date, a police Scene of Crime Officer attended the address and conducted a forensic examination of the scene. During their examination a fingerprint was located on the bottom outside frame of the garage door. This fingerprint was analysed and a profile was obtained and uploaded to the fingerprint database for comparison purposes. The fingerprint was matched to that of the accused, Rajnesh Rohit DASS, date of birth [REDACTED].
Police will allege that between the hours of 9:15pm on the 2nd of March 2016 and 9:30am on the 3rd of March 2016, the accused attended the unit complex of [REDACTED]. Upon entering the basement garage area, the accused forced the left locking peg that secures the garage door belonging to Unit 9. Once inside this garage space, the accused removed the aforementioned bicycle. At some stage throughout, the accused has left his fingerprint on the bottom outside frame of the garage roller door.
On Wednesday the 15th of June 2016, the accused was arrested and transferred from Kariong Correctional Facility to Gosford Police Station where he was introduced to the Custody Manager and was read and explained his rights as per Part 9 of the LawEnforcement (Powers and Responsibilities) Act 2002.
The accused participated in an Electronically Recorded Interview of Suspected Persons (Intrak Recording No. [REDACTED] relates). The accused was cautioned and questioned in relation to the matter. The accused made full admissions to the offence, recalling how he forced the lock and gained entry to the garage. The accused recalled his actions and described the bicycle in detail. When questioned as to the current whereabouts of the bicycle, he slated he left it unsecured at one of the nearby Railway Stations and later returned to find it missing.
The accused is now charged with the matter before the court.”[60]
[60] HB 434-435.
The Applicant told the Tribunal that he remembered this episode and that he intended to sell the bicycle to buy drugs.
It seems that this made no material difference to his future conduct.
On 31 March 2016, the Applicant was apprehended by police in possession of a stolen laptop.[61] The Applicant told the Tribunal that this was stolen to get money for drugs.
[61] HB 734.
On 1 April 2016, the Applicant was taken into custody.[62] He was apprehended by police after acting in a suspicious manner and being found in possession of ice, a pipe, a screwdriver, a saw and a 12 cm blade.[63] The Applicant told the Tribunal that these tools were for his bike. He denied that he was carrying a blade.
[62] HB 43.
[63] HB 733.
On 8 April 2016, the Applicant was convicted in the Paramatta Local Court of possession of equipment for administering prohibited drugs. No penalty was imposed.[64]
[64] HB 43.
On 27 April 2016, the Applicant was convicted in the Paramatta Local Court of possession of equipment for administering prohibited drugs, riding a bicycle without a helmet or a warning device and larceny. He was imprisoned for 1 month (the second sentence of imprisonment).[65]
[65] HB 477.
On 18 May 2016, the Applicant was convicted in the Paramatta Local Court of failing to appear in accordance with bail conditions, common assault (DV), possession of a prohibited drug, contravention of an AVO, possession of housebreaking implements, driving disqualified (2^nd offence), larceny of goods to the value of between $2,000 and $5,000 and possession of suspected stolen goods. He was sentenced to 12 months imprisonment from 1 April 2016 to 31 March 2017. He was given a 6-month non-parole period concluding on 30 September 2016 (the third sentence of imprisonment).[66]
[66] HB 42-3, 478.
The following submissions were made by the Applicant’s counsel:
“SOTO: He's been in custody since 1 April. Your Honour though started the larceny sentence on 2 March. What I'm asking the Court is to find special circumstances on the basis this is his first time in custody and he will be in custody for a period of time because there's such a multitude of offending that takes place, and the offending that takes place takes place in very different forms. With respect to the drive whilst disqualified, your Honour, it's the second driving whilst disqualified offence, he doesn't have a considerable history yet he's given a community service order and whilst he hasn't completed it I would ask the Court to take into account that he did complete the 14 hours, and that he doesn't have a considerable record for driving.
Quite clearly, from the Intensive Corrections report and just the nature of the possess prohibited drug matters, it is quite clear that Mr Dass has an addiction to drugs, ice predominantly, and whilst he did have some matters on his record prior to June 2015 really w see an escalation approximately a year ago where at a party he makes a decision to smoke ice and that led to obviously an addiction. He would have been a good candidate for Drug Court but given that some of the matters involved violence he was not eligible for the program.
There were early pleas of guilty with respect to the majority of the matters and I'm asking your Honour to give a full discount with respect to all matters with the exception of the drive whilst disqualified. I don't have a date as to when the plea of guilty was formally entered. He was on three suspended sentences and certainly those suspended sentences obviously need to be called up. I'd be asking the Court to impose non-parole periods for those matters, he quite clearly needs extensive supervision in the community. The Intensive Corrections order report indicates that he does not wish to go to rehab, he indicated to me that that's actually incorrect, that he's more than willing consider that upon his release.
His wife is before the Court who is the victim of two of the matters of violence and she, as a result of these offences, and I am not making a submission with respect to hardship to family but just so that your Honour is aware, after he was taken into custody she had to leave the rental premises, she's now living with an uncle. They have two daughters together, but she remains supportive of him. The possess prohibited drug matters, in my submission in terms of weights they fall within the lower end, H ending 670, sequence 2, 0.4 grams, there's also 1.8 grams but they're certainly consistent with personal use and prior to all these sets of matters he had no record or form for those types of offences.
HIS HONOUR: Two of the matters, s 12 bonds for eight months, so there is a breach involving them, that is 4421 and 3101, those bonds have already been revoked for the purposes of an ICO assessment.”[67]
[67] HB 49
On 24 August 2016, the Applicant’s visa was cancelled under s501(3A) of the Act (the first Visa cancellation).[68]
[68] HB 126-130.
On 10 September 2016, the Applicant sought revocation of the first Visa cancellation. In supporting documentation, the Applicant stated:
“My problems with the law have been caused by a drug problem that I am determined to overcome. I have been a good member of the Australian community in the past and I believe I can become one again if given another chance.”[69]
[69] Exhibit 3: Respondent’s Supplementary Tender Bundle, 29.
Ms SD put in a statement of support dated 16 September 2016, in which she said:
“1. I [SD], wife of Rajnesh Rohit Dass would like to plea to pardon my husband and let him stay in this country and also give him one more chance to show he can be a better person.
…
4. Giving him a 2nd chance will not only change the lifestyle but also change the lives of his whole family of 7 people lives.
…
5. I as his wife can assure with all the strength that he will definitely become a better person in life as he was before.”[70]
[70] Exhibit 3: Respondent’s Supplementary Bundle, 46.
On 4 October 2016, the Applicant was convicted in the Fairfield Local Court of breaking and entering and stealing good to the value of less than $60,000. He was sentenced to 18 months imprisonment commencing on 24 August 2016 until 23 February 2018 with a non-parole period of 8 months concluding on 23 April 2017 (the fourth sentence of imprisonment).[71]
[71] HB 479.
On 5 October 2016 the Applicant appealed the severity of the penalty.[72]
[72] HB 426-430.
On 20 October 2016, the Applicant‘s appeal was upheld in the Paramatta District Court. The commencement date of his sentence was varied.[73] He was sentenced to 18 months imprisonment commencing on 2 July 2016 until 1 January 2018 with a non-parole period of 8 months concluding on 1 March 2017 (the fifth sentence of imprisonment).[74]
[73] HB 436.
[74] HB 42.
The Applicant was released on parole and taken into immigration detention.
On 1 September 2017, after considering the Applicant’s response, the Respondent decided to revoke the first Visa cancellation. In so doing the Respondent said:
“The Delegate included this tailored warning:
This case was extremely finely balanced and Mr DASS is very fortunate to have his visa cancellation revoked. Mr DASS needs to be absolutely aware that if he reoffends his visa may again be cancelled and he may be returned to Fiji permanently. Domestic violence is absolutely unacceptable to the Australian community. This warning will be taken into account in the event of any future decision on Mr DASS visa status. It is Mr DASS’ best interests not to reoffend.”[75]
[75] HB 133-139.
On the same day the Applicant signed an acknowledgement in the following terms:
“I, Rajnesh Rohit DASS, acknowledge that I have received the Notice of decision to revoke visa cancellation under s501CA(4) of the Migration Act 1958. I understand that I can again be considered for cancellation of any visa l hold if further information of relevance comes to the attention of the department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.
Signature: [signed]
Date: 1/09/2017.”[76]
[76] HB 135.
When the Applicant was released from immigration detention, he had been in prison or detention for 18 months.[77]
[77] See Annexure A.
On 18 October 2017, NSW Corrections records state:
“P/C from partner of the offender [Applicant Wife] regarding the offender not able to attend the E.Q.U.I.P.S. Foundation program due to their child ill and he would obtain a medical certificate. [Applicant Wife] inquired as to how the offender was going and explained the house visit was good for him however, he blamed her for the visit. Discussion regarding positive drug swipe to I.C.E which she explained the offender had told her about a positive to Cannabis not I.C.E.
[Applicant Wife] reported she is upset over his behaviour and reported "he will never change as he has been disrespectful to his parents and herself". Discussion regarding the offender has been directed to complete the E.Q.U.I.P.S. program which has affected his options with regard to employment and self confidence as [Applicant Wife] reported "he is lazy and will never change" Counselling offered to [Applicant Wife] and the offender with regarding to Relationship counselling as she explained she does not care about the offender as he has disrespected the family and was of the belief he will never change. [Applicant Wife] stated she is happy for the offender to know about the conversations and would confront him today about his issues with author stating to her if she feels threatened by the offender to call the Police.”[78]
[78] HB 899.

In about late 2017- early 2018, the Applicant and his wife separated.[79]
[79] HB 624.
On 19 October 2017, NSW Corrections records state:
“P/C from partner of the offender [Applicant Wife] stating the offender has stated the relationship is over due to her confronting about the positive drug result and had left the residence to stay with friends. She reported the offender left last night and had not returned leaving herself to look after the children which may lose her the job. Author explained her safety is paramount and reported if the offender is aggressive in nature to call the Police. [Applicant Wife] reported she had contact from the DVLO officer regarding her welfare as author explained contact with the officer due to concerns he had regarding the offender. Discussion on her well being as she stated she was stressed and was attending housing today and asked the conversation to be kept confidential from the offender. Counselling offered with [Applicant Wife] reporting she would think about it as she is busy at the moment and would call the author if she has any other concerns.”[80]
[80] HB 899.
On 18 December 2017, NSW Corrections records state:
“Mr Dass attended appointment late and missed the review for the EQUIPS program he presented wearing sunglasses whilst talking to the author. Discussion regarding concerns raised by the facilitators about his behaviour and question Mr Dass if he had taken any illicit drugs, which reported not to have taken any drugs. Author questioned him on his appearance and reported he would be drug tested to verify his statements. Mr Rajnesh then admitted to taking methamphatamine on the 17 and 16 of December and reported to have smoked around $100 of the drug on these days.
Review
Author discussed the Breach of his Parole due to illicit drug use and inquired why he has relapsed with Mr Dass claimed he was stressed and was offered the drug from some friends. He minimized his behaviour preferring to blame relationship issues and lack of family support for his actions.
Identity
Participation in PGI 3.2 regarding his relapse to illicit drug use and the consequences to himself and his family as a result of his drug use with Mr Dass reporting to be stressed over issues with his relationship. He minimized his drug use and reported his family and wife were suspicious of him which made him stressed. Author pointed out to the offender his family is concerned over him due to previous offending behaviour and the negative effects drugs have on him. Explanation of the process regarding breach of Parole so close the expiry date of his Order and direction to remain abstinent from illicit drug use.
Describe
Offender tended to blame others than himself with author maintaining Mr Dass to think about his priorities in life and what is important to him. Mr Dass claimed his family were the most important to him with author reintegrating to the offender to work towards proving himself to family and remaining drug free.
Action PLAN
Breach of Parole to be submitted with author to contact parents of the offender to verify attendance to residence and inquire about any concerns. Mr Dass to be drug tested next reporting and access possible detox.”[81]
[81] HB 908.
On 18 December 2017, NSW Corrections records state:
“Mr Dass attended appointment late and missed the review for the EQUIPS program he presented wearing sunglasses whilst talking to the author. Discussion regarding concerns raised by the facilitators about his behaviour and question Mr Dass if he had taken any illicit drugs, which reported not to have taken any drugs. Author questioned him on his appearance and reported he would be drug tested to verify his statements. Mr Rajnesh then admitted to taking methamphatamine on the 17 and 16 of December and reported to have smoked around $100 of the drug on these days.
Review
Author discussed the Breach of his Parole due to illicit drug use and inquired why he has relapsed with Mr Dass claimed he was stressed and was offered the drug from some friends. He minimized his behaviour preferring to blame relationship issues and lack of family support for his actions.
Identity
Participation in PGI 3.2 regarding his relapse to illicit drug use and the consequences to himself and his family as a result of his drug use with Mr Dass reporting to be stressed over issues with his relationship. He minimized his drug use and reported his family and wife were suspicious of him which made him stressed.
Author pointed out to the offender his family is concerned over him due to previous offending behaviour and the negative effects drugs have on him. Explanation of the process regarding breach of Parole so close the expiry date of his Order and direction to remain abstinent from illicit drug use.
Describe
Offender tended to blame others than himself with author maintaining Mr Dass to think about his priorities in life and what is important to him. Mr Dass claimed his family were the most important to him with author reintegrating to the offender to work towards proving himself to family and remaining drug free.
Action PLAN
Breach of Parole to be submitted with author to contact parents of the offender to verify attendance to residence and inquire about any concerns. Mr Dass to be drug tested next reporting and access possible detox.”[82]
[82] HB 909.
On 17 January 2018, the Applicant was found in possession of a stolen bicycle.[83] He claimed to have bought it for $60 when he was with his wife and children in a park. He claimed that he did not know that it was stolen. He claimed to have changed his life around and that he did not now do any drugs or commit crime.[84]
[83] HB 382.
[84] HB 385-6.
The relevant police fact sheet states:
“About 2.50pm, Wednesday 17th January 2018, Police attached to NSW Transport Command were performing transport enforcement duties, at Auburn Railway Station.
At that time the accused stopped in the restricted area of the railway station and informed police that he did not have a rail ticket/ or current Opal Card. The accused was issued with an infringement for this offence.
The accused was in possession of a Merida brand bicycle, which appeared to be an expensive bicycle, suiting a medium level skilled rider. The accused did not appear to match to this type of bicycle. As the accused was issued with an infringement, his details were checked revealing extensive criminal and illicit drug history. Police enquired as to what he was doing in the area to which he stated that he was meeting his girlfriend at the Auburn shopping Plaza across the road, but was not able to elaborate further on this encounter. This raised police suspicion and police were of the opinion that the accused was in possession of illicit drugs.
Safeguards of LEPRA were applied and the accused was informed that he would be searched for illicit drugs, due to his behaviour, appearance, illicit drug history, the location and reasons for being in the area. The accused consented to the search.
Police asked the accused about the bicycle in his possession to which he stated, "I bought it at Blackmans Bike shop, Victoria Road, Parramatta, I bought it for $800, check it out."
The accused left the area and police were informed by rail staff that the bicycle shop he mentioned does not sell that brand of bicycle and the bicycle is worth at least $1000.
Police canvassed the small shopping centre area where the accused stated that he was meeting his girlfriend. The accused was not in this area.
About 4pm, same date the accused walked through the underground pedestrian walkway of Auburn Railway Station. Police approached the accused on Rawson Street, Auburn. Body Worn Camera was activated, the accused was cautioned and police said, "We have made some enquiries and the bicycle shop that you said you bought the bicycle from, does not sell that brand of bicycle."
The accused changed his version and said, "I bought it online at the Blackman website, come to my house I can show you the receipt."
Police asked a few more questions about the purchase to which he replied, "Ok I didn't buy it, my girlfriend did. I'll get the receipt." The accused continued, "You did a check before it wasn't stolen, you have no report of it being stolen, come to my house and I'll show you the receipt."
Police informed the accused that they were suspicious of the bicycle and now the two different versions he told police. The accused was informed that the bicycle would be seized and further enquires would be conducted. Police asked the accused to supply a copy of the receipt to police.
The accused said, "Ok I bought it for $60 from Steve, at the house apartments in Parramatta."
Police asked for further details of Steve, contact details ect. The accused stated that Steve was some guy on the street offering to sell the bicycle for $60, 2-3 weeks ago, so he bought the bicycle from him as he has no car. He stated that Steve was in rush and he was not able to ask him any questions about the bicycle, and he did not think it was stolen at the time of buying the bicycle.
Closer inspection the bicycle, police noticed that it is in mint condition with some accessories missing, compressed aluminium frame, shimano gears and accessories. Further checks reveal that the Merida Bicycle retails for $1200.
The accused was informed that a Future Court Attendance Notice would be issued for the offence of being in possession of the bicycle (Goods Suspected of being stolen)
The accused requested that any court paper work would not be sent to his residence as he lives with his parents. The accused was informed that he could attend a police station to collect the paperwork.
The accused left the area and the bicycle was taken to Auburn Police Station where the bicycle was entered into exhibits reference number: X0002699821.”[85]
[85] HB 388-390.
On 1 March 2018, the Applicant entered a plea of guilty and was convicted in the Burwood local Court of being in possession of suspected stolen goods. He was fine $1,000.[86]
[86] HB 43, 381, 391.
On 12 March 2018, police records state:
“The accused is Rajnesh DASS. In the early hours of Monday the 12th March 2018, the accused has entered the underground garage/car park area of [redacted]. The accused has opened the open garage door of [redacted]. The accused has entered the garage and has closed the garage door behind him. In closing the garage door, the accused has locked himself inside the garage, with the centre locking mechanism falling into it's secured hole in the concrete floor. As this lock is on the outside, the accused was locked inside the garage. About 3am this date, the accused has attempted to break out of the locked garage from inside. The accused has damaged and peeled back a section of metal from the base of the garage door. This caused a tear in the metal approximately 1 metre long. Residents of the unit block have heard loud banging of the garage door being damaged and have gone into the garage area to investigate. There they have observed that the accused was locked in the garage and have called police. The residents located a small silver torch which the accused had been in possession of. Police attended a short time later. Police spoke to the witnesses and then spoke to the accused through the locked garage door. The accused openly spoke to police and claimed that he merely entered the garage so that he could sleep. Police opened the garage door and the accused was arrested, handcuffed and cautioned. Police observed a 'Avanti' Mountain Bike standing against a wall nearby. Residents of the unit block informed police that it did not belong to any of the residents. The accused was asked about the bike and he denied knowledge or ownership of it. The bike was seized pending further enquiries. The accused was conveyed to Auburn Police Station and entered into custody. The accused participated in an ERISP where he made full admissions to opening and entering the garage of [redacted] and he maintained that the only reason for this was to sleep. The accused claimed he had been at Lidcombe earlier that night and was in the process of riding home to Merrylands when he felt unwell and needed rest and therefore sought refuge in an open garage. The accused denied his intent to steal, claiming that there was nothing to steel inside the garage. In regards to this the accused made admissions to touching and moving items within the garage to form a makeshift bed on the floor. Police allege that this movement of items establishes the stealing part of the offence. In relation to the torch, the accused made admissions it was his, however claimed that he only uses the torch as a light when riding his bike. The torch is a small slim line torch which could is not capable to be affixed to a bike as a bicycle light. In regards to having the torch inside the garage, the accused claimed it was so he could look around for items to sleep on. Police allege the accused was in possession of the torch to be used as housebreaking implements. In relation to the damage sustained to the garage door, the accused made admissions to causing the damage in his attempt to break out of the locked garage. The accused claimed he slept for between 30 to 40 minutes and woke up hot and sweaty so he wished to go home. The accused stated he used his hands to pull back the metal of the garage door in his failed attempt to exit the garage. In regards to the bike which the accused initially denied all knowledge of, the accused informed police that he purchased the bike off an associate only known as [redacted] from the Merrylands area. The accused claimed he purchased the bike 2 days prior to his arrest. The accused purchased the bike from [redacted] for the sum of two packets of cigarettes and a 50 gram packet of tobacco. On his own admission the accused believes the bike is worth $400 or $500, yet he has purchased it for three packets of cigarettes. At the time of charging the bike is not reported as stolen. In relation to [redacted] the accused does not know his last name or where he lives. The accused does not know his phone number and has no way of locating him, except for a by chance meeting. The accused further stated that “[redacted] has heaps of bikes”. Police allege the bike is stolen or unlawfully obtained. The accused is charged with the offences of; 1/ Break, Enter and Steal. 2/ Malicious damage to property. 3/ Possess housebreaking implements. 4/ Goods in person custody suspected stolen or unlawfully obtained. Police will be seeking compensation on behalf of the victim for the repair or replacement of the garage door. Exact cost is not known at the time of charging.”[87]
[87] HB 728-729.
On 23 March 2018, police records state:
“At 10:35 on Friday 23 March 2018 Police attended [redacted] in relation to the job received. Police spoke with two residents who stated the PN lives at the location, but the VIC lives at a different address, however also told Police she is likely to be working and provided those details. At 10:44 Police attended a second address in [redacted], however the VIC was not home. Further enquiries were made with the INFT who stated she was at work and provided those details. Police attended the VIC's work at about 11am and spoke to the VIC. She stated that the reason she called, requested Police and then hung up was that she didn't want Police to come to her address at that time, and wanted to see them after. The VIC stated the argument was about finances and the children. The VIC states the PN had also accused her of having an affair with her work manager, to which she denied. The VIC told Police the argument about money was due to the VIC lending the PN $130 on Wednesday 21/03/18 that the PN insisted he pay her back, which he hasn't yet. In addition, the argument about the kids was due to the PN wanting to pick the children up from school, however the VIC telling her older daughter, [redacted], to head straight home after school with her young sister, and not waiting for the PN to pick them up. The PN has then started to yell at the VIC, calling her a "cunt" and a "cocksucker". Once the PN had started yelling, both children have left and gone into the backyard of the location. Police asked the VIC if anything further was said to her, including threats to her or her children's safety, which she denied and also made very clear that the PN has never hurt or threatened to hurt the children. The PN is currently on bail for stealing related offences, and there are no current bail conditions related to the VIC in place. APPRAISED. INJURIES / MEDICAL TREATMENT/ DAMAGE TO PROPERTY: Nil EVIDENCE AND EFFECTS OF ALCOHOL & DRUGS: nil MENTAL HEALTH & OTHER HEALTH ISSUES: nil FIREARMS / DANGEROUS WEAPONS: nil FEARS HELD BY VICTIM: VIC did state that she is unsure what the PN will do, however states the PN did not make any threats towards her, or the children, and could not clarify why was meant by what she said.”[88]
[88] HB 727.
When asked about this, the Applicant at first said that it didn’t happen, then that he can’t remember and finally, that he had no comment.
On 15 April 2018, the Applicant was found in possession of a stolen Mountain Bike.[89]
[89] HB 392.
The police fact sheet relating to this states:
“The victim in this matter is [REDACTED].
The victim is the owner of a residential unit and accompanying storage cage which is situated in the unit block car park of [REDACTED].
About 10.00am on Tuesday 3 April 2018 the victim locked and secured this storage cage which contained an amount of personal property.
About 8.00am on Wednesday 4 April 2018, the victim found that his storage cage had been broken into and the following items were stolen; - A black GIANT Mountain Bike serial number C5BD2194. - A bike helmet and pump. - An unknown amount of beer and wine. – A waist bag.
The victim reported the matter to police, including the stolen bike's serial number.
About 7.40pm on Sunday 15 April 2018, police from Auburn Police Area Command attended the home address of the accused in order to speak to him, being [REDACTED] in relation to other matters. Police were inside the premises talking to the family members of the accused and were advised that the accused was not at home. Whilst police were inside the premises, about 7.45pm, the accused returned home. Police offered the accused to talk in private outside, away from his family members which the accused accepted.
Police and the accused exited the premises and continued their discussion on the front porch of the dwelling.
Police observed a black GIANT Mountain Bike leaning against the porch railing.
Police had personal knowledge of the accused and decided to make some enquiries regarding the bike. Police asked the accused about the bike. The accused initially claimed the bike was his brothers, however when police pressed the accused on this claim, the accused changed his version and told police that he "borrowed it off a mate and had to give it back tomorrow". The accused became clearly nervous. He began to perspire and he became agitated.
Police made observations of the bike. Police located the serial number and noted it as C5BD2194. Police conducted a check on the bike which revealed it to be stolen from the before mentioned Break Enter and Steal offence on the 3rd/4th of April from a nearby address.
Due to the property being on private property, police sought informed consent from the accused to seize the bike for further enquiries. The accused gave this consent. Police cautioned the accused and conducted an in field electronically recorded video with him. The accused again informed police that he borrowed the bike from a male only known as "Little Mike" the day prior and planned to return it to "Little Mike" the following day. The accused couldn't provide any further detail to assist police in identifying and making contact with "Little Mike". When asked how he would contact "Little Mike" in order to return the bike, the accused informed police that "Little Mike" is homeless and therefore un-contactable on phone and sleeps in parks. The accused denied being involved in the break enter and steal offence.
Police seized the bike and informed the accused he would be charged for goods suspected stolen or unlawfully obtained on premises by way of Future Court Attendance Notice at a later time.
Police have contacted the victim and he has confirmed that he does not know the accused or a "Little Mike". The bike has since been returned to the victim.
The accused is charged with the matter before the court.”[90]
[90] HB 394-5.

On 21 May 2018, police records state:
“About 7:30pm on the 21st May 2018, the accused, Rajnesh DASS rode a bicycle into the underground parking area. The accused is depicted on dashcam CCTV wearing a white hat, grey Puma hooded jumper, black pants and black shoes. The accused walks through the underground parking garage looking into garages and storage areas belonging to tenants. The accused approaches the victims white Toyota Hilux removing the trays cargo net. The accused looks through the tray area looking for items of value. About this time the witness, [redacted] attends the garage area where he observes the accused. Upon seeing the witness the accused leaves the location. The witness reviewed his dash-cam footage which depicts the incident. Police were subsequently notified and were provided with a copy of CCTV footage where the accused was positively identified. The accused is subject to strict bail conditions arising from charge [redacted]. As part of these bail conditions the accused is required to report daily to Merrylands Police Station between the hours of 8:00am and 8:00pm. About 7:40pm on the same date the accused attends Merrylands Police Station wearing the same clothing as depicted in dashcam CCTV. About **:** on the 23rd May 2018 the accused attended Merrylands Police to report as per his bail conditions. Police introduced themselves placing the accused under arrest and cautioning him. The accused was conveyed to Granville Police Station where he was introduced to the custody Sergeant who read and explained his rights whilst in Police custody.”[91]
[91] HB 722.
On 23 May 2018, the Applicant was again imprisoned for 8 months commencing 23/05/2018.[92] He had been in the community for just short of 9 months.
[92] HB 41.
On 4 September 2018, the Applicant was convicted in the Parramatta Local Court of entering a vehicle or a boat without the consent of the owner, entering a building with the intent to commit an indictable offence, breaking and entering, being in possession of suspected stolen goods and damage to property. He was convicted and sentenced to an aggregate of 18 months imprisonment commencing on 23 May 2018 and concluding on 22 November 2019 (the sixth sentence of imprisonment). He was given a non-parole period of 8 months concluding on 22 January 2019.[93]
[93] HB 41-42.
The Court record includes the following:
“TENNER: Your Honour, the client's 41 years old. He was born in Fiji. He migrated here with his family in 2002. He's always worked since he arrived in the country, he tells me. He's worked for Harris Farm. He was employed by them until 2014. Late 2014 he got involved with the wrong people. He tried drugs.
At the time he was having some financial problems and he was introduced to the drug scene by some friends. He experimented pretty much right away with the drug ice. He says since then this is what keeps bringing me back to court for these dishonesty offences. He's been stealing in the past- well, not just in the past. He's been - these property related offences in the past and presently are related to his - are because he's trying to support his drug habit.
He said that it's taken him so long to get help: (1) because he didn't really - caught up in his addiction he couldn't really see the impact it was having on is family. He did but he didn't. He said this course that he did in custody at John Morony has really helped him see things from a different perspective. He says that he can see just how broken his family is because of his drug use.
He has two little girls. One is 11 and the other is 6. His wife; in the past she's had the support of his parents. Now she doesn't have the support of his parents. Her parents are here, but she doesn't have the support of his parents because she doesn't live with his parents and he says that he can see just how burdened she is by having to handle all the responsibilities in terms of parenting and work, like the financial responsibilities of handling all this on her own. He says that he wants to - he's asking the Court if it would give him the opportunity of being referred for assessment for a residential rehabilitation. He has never tried it before. That kind of intense-
…
HIS HONOUR: So he does have a history of similar offending.
TENNER: Unless there's anything else, your Honour.
HIS HONOUR: Thank you now and, sorry, I should note that he would have been on bail at the time of the second lot of offences, too, an exacerbating feature of this offending. Mr Dass, it’s pretty clear from your history that you need urgently to do something about your drug use. It's clearly the explanation for a lot of this offending. I mean, drug use is engaged in initially as a voluntary act. There's nothing to suggest that you commenced your drug use as a child or when a child under the influence often of parents or older peers as sometimes occurs at a time in people's lives when they're not really able to appreciate fully the consequences of what they're doing.
But your drug use started as an adult when you were able to understand the potential consequences of that kind of activity that you did in any way and, well, here you are. So drug use explains your offending; it doesn’t excuse it, and your offending of course has continued over a time. You have a variety of offences on your record; drug offences, offences of violence, primarily domestic violence offences, possibly influenced by your drug use, and now are property offences; breaking and entering, amongst other things, on your record, and offences of a similar kind occur here.
On one of these occasions you effectively were trapped inside a garage that you illegally entered while on bail charge ending 803 for the offences that constitute that matter were committed, a further exacerbating feature. I note that you've taken some steps whilst in custody to complete the course. Well that's well and good so far as it goes.
But. Mr Dass, what you do - really. I mean, there's got to be a personal responsibility for your offending and for your drug uses and if you've got a problem such as ice addiction it is extremely difficult, I know, to put it behind you. You've got a family. For most people if you need motivation you'll find it there. You've got two dependent children. I don't know how they regard you now but, clearly, you will have diminished yourself in their eyes and if you want to restore that then you've got to do a lot more in the future than you've been prepared to in the past.
There will be a sentence of imprisonment for these matters. I don't think the Court has really any other choice. I'll take into account the pleas eventually entered, although there was a delay in doing so. You've sought to participate in the Drug Court Program but they've ruled you ineligible. I don't have details as to why, but I suspect it was the offences of violence on your record that draws you out. It's a pity in many ways because that would have been the kind of program that you'd benefit from and what you do need, I think, at this stage of your life is a degree of close supervision that the Drug Court is able to exert, and particularly the..(not transcribable)..sanctions that are available to you uniquely and which are not available to this Court.
But in the absence of that I note that there's no real options, I think, for this Court but to impose a sentence of imprisonment in light of the fact that the nature of these offences, the fact that the most recent of them were committed whilst you were on bail for the earlier ones, and taking into account the totality of your record. I'm going to impose an aggregate sentence.”[94]
[94] HB 51-56.
On 24 October 2018, the Applicant withdrew an appeal lodged in the Parramatta District Court in relation to the convictions on 4 September 2018.[95]
[95] HB 40-41, 62.
On 8 November 2018, the Applicant was convicted in the Burwood Local Court of being in possession of suspected stolen goods. He was convicted with no penalty.[96]
[96] HB 40.
On 13 November 2018, NSW Corrections records state:
“Rajnesh has returned to custody for a similar offence to his last, enter building w/i commit indictable offence- T1, B&E dwelling-house ect with intent (steal)-T1, goods in personal custody suspected being stolen (not m/v) and destroy or damage property. He in serving 1yr6m with a NPP of 8m, his EPRD 22/01/2019.
Rajnesh returned to using ICE when released and was using 1/2oz daily, he states that he doesn't use any other substance but finds it difficult to stop using after the initial usage. He states he wants to get away from the drugs as his wife is starting is not supporting his continued use. i feels that he might lose her if he continues.
Rajnesh completed yr 12 at school and has no difficulty reading, writing or doing mathematics. He has maintained employment all in life until 2015 where no night he was at a party, everyone was smoking ICE, he cracked under peer pressure and tried it and from there his life as he knew it changed, he lost his job, started selling his possessions and then started committing crime all to support his increasing desire to have more ICE.
Rajnesh has a wife and 2 daughters, his mum and dad and 2 bothers are Australian citizens and life here as well, His whole family are hard working people and have a pro-social influence within their family. None of them have criminal records or are involved in drugs. Rajnesh states that they are all supportive at the moment but fears if he continues to offend he might lose them or even worse become an interest to immigration due to him being born in Fiji.
Rajnesh is willing to work whilst in custody and wants to break his dependency on drugs, ICE in particular. He is willing to address his criminogenic needs through services and programs as identified.”[97]
[97] HB 921.
This report makes it clear that the Applicant was well aware of the possible consequences of reoffending. On 4 January 2019, NSW Corrections records state:
“FV to proposed accommodation 106 Centenary Road, South Wentworthville accompanied by CCO. CCO met with offender's former partner [redacted].
Co-resident details provided as:
[REDACTED] – [DOB redacted] - wife
[REDACTED] - [DOB redacted] - Daughter
[REDACTED] - [DOB redacted] - Daughter
Accommodation was neatly kempt.
[Applicant Wife] was very forthcoming regarding the offender's historical behaviour.
Offender's partner presents as supportive of offender living with the accommodation. Claimed that her children were excited for the offender to return home.
Claimed that offender has alleged he has been 'clean' during his custodial sentence. Indicated that she is well aware when he uses methamphetamines and he physically looks better in goal. Visits him frequently via train.
[Applicant Wife] advised that she was willing to provide the offender one last chance to change. Claimed that he has portrayed some motivation during their interactions. Advised that she has contacts to obtain employment for offender.
[Applicant Wife] is very insightful into offender's behaviour, knows when he is clean and when he is taking drugs.
[Applicant Wife] also revealed that she has adopted a 'zero-tolerance' approach towards the offender and any further wrong doing will warrant his eviction.
Significant concerns did became apparent during the interaction with the CCO in relation to drug use, violence erratic behaviour.
Information submitted to corporate records.
[Applicant Wife] was referred to Cumberland Women's Health Centre.”[98]
[98] HB 925.
On 16 January 2019, NSW Corrections records state:
“PRHV conducted with CCO to [redacted]. Met with Rajnesh's parents, [redacted] and [redacted], and his sister-in-law, [redacted]. Also residing at the house is [redacted] and [redacted], Rajnesh's two brothers, and [redacted], his niece. Rajnesh's parents and [redacted] have an good understanding of his criminal history and drug use. They believe it commenced approximate three years ago as a result of hanging around with co-workers from his job at Harris Farm fruit shop; prior to that, he'd been a law abiding husband and son who was achieving in life. They said that Rajnesh is fully aware that he can't use drugs at their house and they are more than happy to police that rule. They understood why he was not able to return to his wife's house at this stage; confirmed that he is allowed to have contact with his wife and children and spend time with them, but must return home every night and must not have sole care of any child. [Applicant sister-in-law] advised that she is the primary carer for [Applicant niece] and that at no time will Rajnesh be left on his own with her; there are six adults in the house who are able to assist with this. Fully supportive of home visits and referral to programs and counselling, although their priority is for him to get a job. Address assessed as suitable.”[99]
[99] HB 928.
On 21 January 2019, the Applicant’s visa was again cancelled under s501(3A) of the Act (the second Visa cancellation).[100] The Respondent’s letter stated:
[100] HB 136-141.
“Purpose of this notice
You were granted a Class BB Subclass 155 Five Year Resident Return visa on 24 August 2009 (your visa). The purpose of this notice is to advise you that on 21 January 2019 your visa was cancelled under s501(3A) of the Migration Act 1958 (‘the Act’).
Section 501(3A) of the Act is a mandatory cancellation power, and provides that the Minister must cancel your visa if the Minister is satisfied that:
-you do not pass the character test, either because:
oyou have a substantial criminal record under s501(6)(a) and the reason that
oyou have a substantial criminal record is because of s501(7)(a), (b), or (c) of the Act; or
oyou do not pass the character test under s501(6)(e) because a court in Australia or a foreign country has convicted you of one or more sexually based offences involving a child; or the court has found you guilty of such an offence or found a charge for such an offence proved against you, even though you were discharged without a conviction; and
-you are serving a full-time sentence of imprisonment in a custodial institution because you have committed an offence or offences against Australian law.
Failure to pass the character test
Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground:
You have a substantial criminal record within the meaning of s501(6)(a) on the basis of s501(7)(a), (b) or (c) of the Act. Under s501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 04 September 2018 you were convicted of Destroy or damage property, Enter building/land w/I commit indictable offence – T1, Goods in personal custody suspected being stolen (not m/v) and Break and enter dwelling-house etc with intent (steal) – T1 and sentenced to an aggregate term of 18 months imprisonment. On appeal on 24 October 2018, your sentence was confirmed.
The information based on which the decision maker was satisfied that you do not pass the character test is the Court Order Notice from the District Court of New South Wales at Parramatta dated 24 October 2018 and the Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 21 January 2019.
Imprisonment on a full-time basis
Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
In particular, regard was had to the Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 21 January 2019.
The full text of s501, including s501(3A) (mandatory cancellation power), s501(6) and s501(7) (character test) of the Act are included in Attachment 1.”[101]
[101] HB 136-140.
On 22 January 2019, the Applicant became eligible for parole.[102] On the same day, NSW Corrections records state:
“Interview with inmate in intake. Inmate was explained the Notification of Visa Cancellation and Mandatory cancellation Notification Package and explained that immigration would be picking him up today from Wellington Correctional Centre. The inmate acknowledged the forms and took the package, he stated he was willing to complete the package on his own, further signing the required sections. Inmate stated he was aware of the process as he has been through this before, however CCO explained and further re-iterated he had 28 days to return the required forms to the appropriate parties from today's date.
Inmate requested that his wife be notified as she was driving to Lithgow to meet him when the bus arrived.”[103]
[102] HB 41.
[103] HB 929.
He was taken into immigration detention.
On 18 February 2019, lawyers acting for the Applicant made submissions to the Respondent in support of his application to have the Visa cancellation revoked. In supporting documentation completed by the Applicant he stated:
“10. CRIMINAL HISTORY AND RISK OF REOFFENDING
Outline any factors you believe help explain your offending, that you want the decision-maker to take into account.
Sir the reason I reoffended was because I relapsed into drugs. I know it is no one to blame except me but if I was not into drugs I would not have reoffended. I had full support from my family to live a drug free life but somewhere along I did drugs (ICE) again and got myself in trouble again with the law. I am sorry.
If you have completed any courses or programs that will help you to avoid further offending, provide details of these and attach evidence.
I did remand-addiction course and save a mate from drug and alcohol also I am doing N/A at Villawood Detention Centre.”[104]
[104] Exhibit 3: Respondent’s Supplementary Tender Bundle, 14.
On 11 September 2019, after considering the Applicant’s response, the Respondent decided to revoke the second Visa cancellation. In so doing the Respondent said:
“Warning: if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds.
…
WARNING: The delegate issues the following warning to you:
The Australian community expects non-citizens to obey the law. This means where a non-citizen breaches this trust by engaging in serious criminal conduct, especially where it involves violence against women, they should generally expect to forfeit the privilege of remaining in Australia.
You now have a lengthy criminal history in Australia that amounts to serious offending. It is of further concern that you have previously had your visa cancelled, and faced the prospect of removal from Australia, yet continued to reoffend. It makes it very difficult to accept your submissions, now made for a second time, that you will address your drug addiction and obey the law.
While finely balanced, I decided to revoke your visa cancellation because I considered the significant impact this decision has on your family, especially your children who are still of a young age. However, I stress this decision was not taken lightly. Your ongoing criminal conduct is not acceptable and I urge you to take this further opportunity to rehabilitate. This is now the second time that you have been warned about your conduct and the impact it can have on your immigration status; you should seriously consider that if you continue to engage in criminal conduct, you risk permanent exclusion from Australia, where most of your family permanently reside.
If you engage in any further violent, criminal or other serious conduct and your case is considered on character grounds in any future process, this warning may weigh heavily against you in considering whether to cancel a visa you hold, or whether to refuse to grant a visa application you make. A copy of section 501 is attached for your information.
You must complete the acknowledgement of receipt of this letter on page 3 by signing and returning it to the Department by post, email or fax. The relevant contact details are listed at the bottom of page 1.”[105]
[105] HB 142-3.

The Applicant’s extensive history of family violence is set out above.
I accept the evidence of the Applicant’s wife and her complaints to police as set out in various the various reports set out above.
To the extent of any conflict, I am satisfied that those accounts are more reliable than any given by the Applicant.
The Applicant’s family violence occurred over a considerable period. It included breaches of AVOs.
It also continued despite his past 2 visa cancellations.
The Applicant says that he has now taken responsibility for his actions. For all the reasons set out above, the extent to which he has in fact been rehabilitated is at present, reliant entirely on his assurances. In the light of his past conduct and past assurances, this carries little, if any weight.
Conclusion: Primary Consideration 2
This consideration weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Primary Consideration 3: Ties to Australia
Paragraph 8.3 of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant’s ties to minor children in Australia are set out below in the context of Primary Consideration 4. I refer to that discussion.
The Applicant arrived in Australia in 2002 as a 25-year-old man. His formative years were spent in Fiji.
The Applicant’s offending began a few years after his arrival. His first recorded instance of family violence occurred in 2008, although the police record of interview suggests that this had already been going on for about 9 months by that time.[190] This was well before his ice addiction and was probably associated with alcohol abuse.
[190] HB 410-412.
The Applicant has spent some time in the paid workforce, but not for the past decade.
The Applicant worked in Australia from 2002 to 2015. In relation to this he says:
“List positive contributions you have made to Australia for example, volunteer activities, participation in community and cultural activities, employment etc. Provide any references in support.
Sir, I held a job in Australia from 2002-2015 in one company, I paid my taxes but since I touched ice in 2015 it cost my job. I worked for fresh produce company Harris Farm in Edgecliff for 14 years.”[191]
[191] HB 96.
The evidence suggests that he has been in prison or detention several times. He has been the subject of AVO’s to protect his family. He has breached them. I refer to the detailed discussion of his offending set out above. I also refer to Annexure A in this context.
The Applicant’s wife and 2 biological daughters live in Australia.
In relation to his wife he says:
“Describe any current impact on family members, and/or any likely impact on them in the event of a negative s501 decision outcome (i.e. a non-revocation or visa cancellation/refusal decision).
My wife is currently paying rent, bills, daughters school fees on her own. She is expecting me to come home, find job and help her financially. If I am sent back, she will be depressed, very hard to pay rent, bills on her own, she just had a surgery and only been working few days a week.”[192]
[192] HB 93.
The Applicant’s wife provided a further undated statement.
Whatever troubles there have been in the history of these relationships, I accept that they are close. Child B and other minor children are discussed in more detail below. I refer to that discussion in this context also.
I accept that if the Applicant were to return to Fiji this may have serious consequences for all of his family, but particularly for his wife and daughters who would be deprived of his ongoing financial and practical support. The extent of this detriment would be directly linked to the prospects of his successful rehabilitation.
To a lesser extent a similar observation could be made in relation to his mother, his siblings, their families and so on.
The Applicant has 2 brothers, his sister in-in-law and his mother living in Australia. One of his brothers and his mother are Australian citizens.[193] Again, I accept that these relationships are close.
[193] HB 93, 115, 116.
The Applicant has also disclosed 2 grandparents, 10 cousins, 7 uncles, one aunt and 8 nieces/nephews in Australia. It was evident during the hearing, that the Applicant was applying different kinship definitions to those generally understood in family relationships. For instance, the grandparents referred to were not his biological grandparents. The fact remains however, that the Applicant certainty has extensive family connections in Australia, beyond his immediate family.
The Applicant has produced letters of support.[194]
[194] HB 112.
I accept that in the many years that the Applicant has been in Australia, he has become a part of our broader community.
In summary, the Applicant has extensive and deep connections in Australia. He has however, been a long-term burden on our community as detailed above. He has been a particular burden on his wife and close family. This detracts from what otherwise would have been a very heavy consideration in his favour.
Conclusion: Primary Consideration 3
This consideration weighs moderately in favour of revocation of the cancellation of the Applicant’s visa
Primary Consideration 4: The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The relevant minor children in Australia are:
(a)Child B, the Applicant’s daughter, 13 years old.
(b)Child C, the Applicant’s niece, aged 8 years.[195]
(c)Child D, the Applicant’s nephew, aged 16 years.[196]
(d)Child E, the Applicant’s nephew, aged 16 years.[197]
[195] HB 91.
[196] HB 91.
[197] HB 91.
As previously mentioned, it was unclear whether the Applicant was always using the terminology of “niece” or “nephew” in the commonly understood way. Some of these children may perhaps have been the children of cousins for example. The Applicant was somewhat vague about this when asked. He was unable to give a clear picture of the exact number of children in this category. They all seem to have been a part of his extended family though.
Only one of these children had a parental relationship with the Applicant.
The Applicant’s overwhelming focus was understandably, on his youngest daughter, Child B. In relation to Child B, the Applicant stated:
“Describe your relationship with each of your minor child/ren above, including how often you contact/see the child/ren and the role you play in their life
I have two daughters aged 15 and 10 years old. My eldest daughter,[198] [redacted name] – I have a very close relationship with her, I am present in her life as a dad who loves their children. I used to see them everyday after school with my wife and since I was in custody I speak to them daily on the phone. I support them if they need help in school, work or nay other activities we play sports together at our local park and I am always there for them. When I speak to my daughter she often asks me “papa when are you coming home?” I say very soon.
Describe any current impact on your minor children above, and/or any likely impact on them in the event of a negative s501 decision outcome (i.e. a non-revocation or visa cancellation/refusal decision).
My eldest daughter as turned 15 years and she is in private school. My daughter will be shattered depressed if I am sent back to Fiji, it will be a financial difficulty on my wife which will affect my daughter as it is now. her studies will get affected, she might turn to negative things in life like drugs because my family will be torn apart, as my wife won’t be able to do all things on her own. I need to get employment and support my wife, kids.”[199]
[198] Now an adult.
[199] HB 90, 92.
The Applicant’s SOFIC filed on 25 June 2025 says in relation to minor children:
“60. The applicant is a father to two current minor Australian children, albeit one of them will be turning 18 later this year. Their consideration must be taken into account.
61. The applicant’s younger daughter especially will be severely impacted given that she remains a minor and will remain a minor for quite a few years.
62. The applicant’s children will be unable to relocate back in Fiji since they were born here and their future will be greatly impacted if they were to go to a country, they never lived in.
63. Furthermore, the applicant’s minor niece, [redacted name] and nephews, [redacted name] and [redacted name] interests may be impacted should he depart Australia.”[200]
[200] HB 1156.
The Applicant has spent extensive periods in prison of detention since 2016, as set out above.[201] He has obviously made little contribution to any of the children during this period. Their needs have been attended to by others.
[201] See Annexure A.
Child B has lived in a household where the Applicant was in a parental role but he has also engaged in acts of family violence.
The Applicant has maintained close contact with Child B, mainly electronically for the last few years.
If the Applicant were returned to the community he could interact with the children and subject to the ongoing relationship with his wife, perform a parental role for Child B.
If the Applicant were to reoffend, his influence on all of the children, but especially Child B may be very negative.
If the Applicant were to return to Fiji, he could still keep in touch with Child B in particular electronically. Child B could visit him in Fiji. If the Applicant obtained work in Fiji, he could financially support his wife and children.
This is a case where the Applicant’s relationship with the children, especially Child B, has been disrupted by family violence, AVO’s imprisonment and detention.
This conduct by the Applicant, has reduced the weight that this consideration may otherwise have had in the Applicant’s favour.
The Applicant presented his case in such a way as to focus almost exclusively on only Child B.
The Applicant was somewhat vague in differentiating his relationships with Child C, D and E.
Child C is his brother’s daughter, but he otherwise had little to say about this relationship.[202]
[202] HB 91.
It is unclear exactly what the Applicant’s relationship with Child D and E is. It is unclear whether they are his nephews in the conventional sense of that terminology.[203]
[203] HB 91.
I accept that he may play some role in their lives and that they may be distressed if he were to return to Fiji. This of course assumes that he has rehabilitated himself and that he will remain drug free. If that were not the case, his influence may be negative, not positive. He could in any event keep in touch electronically from Fiji and they could visit him there.
Conclusion: Primary Consideration 4
The extent to which the Applicant’s presence may be in the interests of any minor child is linked to his risk of reoffending. If he were to reoffend, it may well be that it is not in the interests of minor children, especially Child B, that he remains in Australia.
Having regard to all of the above, and assuming in the Applicant’s favour that he does not reoffend, primary consideration 4 weighs moderately in favour of revocation of the Applicant’s visa cancellation
Primary Consideration 5 – The Expectations of The Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[204]
[204] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
a.the Applicant’s criminal record as set out in Annexure B
b.the Applicant’s record of imprisonment, AVO’s and detention.[205]
c.The Applicant’s two previously revoked Visa cancellations.
d.the other matters set out above
Conclusion: Primary Consideration 5
[205] See Annexure A.
Primary consideration 5 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a) legal consequence of the decision:
The Applicant did not raise any protection claims I relation to returning to Fiji.[206]
[206] HB 1158 at [74].
I accept that if the Applicant is not successful in these proceedings, he will be liable for continuing detention pending removal from Australia. This would be an adverse outcome, but one common to all unsuccessful applicants in similar proceedings.
This Other Consideration (a) is neutral.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.

In relation to this the Applicant says:
“Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?
If I return to Fiji, I very certain I will be homeless, as I have no family support back there. This will affect me mentally. All my family is here to help me and support me fight my drug issues.
Do you face any criminal charges/convictions in your country of citizenship?
[ ] Yes [x] No.
Are there any other problems you would face if you have to return to your country of citizenship? If so, describe these.
I will be affected financially as there’s not many jobs, I will not have a home to stay, whom will I live with, I will have lot of problems – I need my family to help me fight this addiction and to help me with my rehabilitation.”[207]
[207] HB 97.
The Applicant is aged 48. He has a history of high cholesterol and elevated blood sugar levels.[208] He has a history of dental problems.[209] He has a history of substance abuse issues.[210] He also has a history of mental health issues.[211]
[208] HB 1242.
[209] HB 1242.
[210] HB 1242.
[211] HB 1242.
I accept that the Applicant has few if any family supports to rely upon in Fiji.
I accept that he would find readjustment to life in Fiji very difficult.
I accept that the Applicant is vulnerable to a deterioration in his mental health if he returns to Fiji and that this may result in him relapsing into drug use.
I accept that he may find it difficult to find employment and accommodation.
On the other hand, the Applicant has no cultural of linguistic barriers in returning to the place where he spent his first 25 years.
The Applicant would be able to access the same social, medical and economic support as any other citizen of Fiji. In saying this I accept that these may well be inferior to the supports available in Australia. I accept that drug treatment programmes may be much less available and/or adequate.
This consideration (b) weighs against revocation.
(c) Impact on Australian business interests
There was no evidence on this.
This Other Consideration (d) is neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs extremely heavily against revocation.
Primary consideration 2 very heavily against revocation
Primary consideration 3 weighs moderately in favour of revocation.
Primary consideration 4 weighs moderately in favour of revocation.
Primary consideration 5 weighs very heavily against revocation
Other consideration (a) is neutral.
Other consideration (b) weighs in favour of revocation.
Other consideration (c) is neutral.[212]
[212] Find in the above paragraphs.
I note that paragraph 7(2) of the Direction requires that protection of the Australian community is generally to be given greater weight than other Primary Considerations, and that Primary Considerations should generally be given greater weight than the Other Considerations.
I note that paragraph 8.1.1(1) of the Direction states that crimes of a sexual nature against a child are viewed very seriously by the Australian Government and the Australian community.
The Applicant has an extensive and serious criminal history.
He has engaged in acts of family violence over many years, breaching AVO’s in the process.
He has been an ongoing burden on our community, consuming public resources in the criminal justice system.
He has not been a contributor to our community through work and paying taxes since 2015.
On the other hand, I accept that the Applicant has deep connections to our community as discussed above.
I accept that he would find a return to Fiji, very difficult.
If this was all that was to be considered in this case, in my view the balance would be against the Applicant, but not overwhelmingly so.
In this case however, the Applicant has been down this same path of visa cancellation twice before. He has given assurances about his future conduct twice before; he has acknowledged formal warnings twice before.
Yet here we are again, now considering the 3^rd Visa cancellation.
The Applicant’s own demonstrated inability to match his past commitments with appropriate conduct, is an overwhelming factor weighing against him.
As previously observed, I have little confidence in the reliability of any assurance that the Applicant may now give as to why this time, he will not relapse into drug use or reoffend.
The consequences of his failure to meet his assurances are potentially very serious.
The safety of the Australian community is a priority.
I am not satisfied that there is “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is affirmed.

I certify that the preceding three hundred and sixty six (366) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

............................[SGND].......................................
Associate

Dated: 10 September 2025

Date of hearing: 18 and 19 August 2025

Advocate for the Applicant:

Ms M. Lewis (Crossover Law Group)

Advocate for the Respondent:
Mr M. Wong (HWL Ebsworth Lawyers)

Date of hearing:	18 and 19 August 2025
Advocate for the Applicant:	Ms M. Lewis (Crossover Law Group)
Advocate for the Respondent:	Mr M. Wong (HWL Ebsworth Lawyers)